New York's Condom Bait-and-Switch

Department of Health hands them out, NYPD arrests people for carrying them. Is this about improving public health—or arrest numbers?

One block north of the boardwalk in Coney Island, a white van is parked on the windswept block of Surf Avenue, between West 22nd and West 23rd Streets. Just outside the van stands a young woman wearing a teal hoodie, her auburn hair pulled back into a tight bun with a few loose strands escaping around her ears, and an anxious expression. Jennifer Gonzalez-Hermides, 32, is a prostitute, and she is here to pick up free condoms. But there is a problem. “The first time,” she says, “was right over here on Surf Avenue. They asked me to take out what was in my pocket, and I had one in there.” Sweat glistens on her pale forehead. “They arrested me.”

Gonzalez-Hermides is talking about the cops, and her case is hardly unique. Another prostitute, a 33-year-old who goes by the street name "Tiny," says she was arrested on Surf Avenue last year after an undercover police offer asked her, “What do you have in your pockets?” She had two condoms and was arrested for “loitering for the purposes of prostitution.” She says that several of her friends have recently had similar experiences. As for Gonzalez-Hermides, she was arrested two subsequent times, in 2009 and 2010, for prostitution-related offenses. Both times, she says, her condoms were confiscated when she was arrested, and both times she pleaded guilty. While she was serving time after her second arrest, her husband died of a drug overdose.

The New York City Department of Health's free condoms.
Kelly Schott
The New York City Department of Health's free condoms.
Emily Gogolak

“This is a huge problem,” says Isaac Hernandez, an outreach worker with the Foundation for Research on Sexually Transmitted Diseases (FROST’D), a Harlem-based harm-reduction nonprofit. Hernandez has been driving the white van to its parking spot on Surf Avenue for the past 12 years to distribute food, clean syringes, and the condoms that his group receives from the Department of Health. He says that undercover police routinely park nearby—he points out their van down the street. There is no law that says the possession of condoms is illegal, of course, and yet NYPD officers routinely use the possession of condoms as arrest evidence for charges of prostitution or loitering for the purposes of prostitution. This has created a situation that would be farcical if it weren’t so bleak—one city agency conducts a public-health campaign and the very people who take advantage of it are then promptly arrested by a different city agency—leading to cases being thrown out of court, a suppressed and redacted city-sponsored study of the problem, and a bill to address the matter in the current session of the state legislature.

On a recent Tuesday morning in February, the single-file line behind the security checkpoint at Midtown Community Court, on West 54th Street between Eighth and Ninth Avenues. All so-called quality-of-life offenses in Manhattan pass through this court: public urination, petty larceny, riding a bike without a helmet, using a scooter in a transportation terminal, solicitation on subways, drinking in public—and prostitution and loitering for the purposes of prostitution.

Kate Mogulescu, fresh-faced with dark brown curly hair and a warm smile, rushes in and out of the courtroom to retrieve more clients. A staff attorney for the New York Legal Aid Society and head of its Trafficking Victims Legal Defense and Advocacy Project, she is the go-to defender for prostitution-related cases in Manhattan. Today she will represent 25 clients arrested for prostitution or loitering for the purposes of prostitution—almost all of whom will plead guilty. “There is a real disincentive in the criminal court system to contest allegations,” Mogulescu says. In New York City, high numbers of quality-of-life offenses have created pressure on the groaning court system to rapidly dispose of minor charges at the first court date or arraignment. Defendants risk more jail time by taking a case to trial, so they often accept a lesser sentence for pleading guilty. “They want to get it over with,” says Mogulescu, “through community service or the shortest jail time possible.”

According to the New York Department of Criminal Justice Statistics, there were 4,054 prostitution-related arrests in New York City in 2011. On the rare occasion that prostitution cases actually go to trial—in her first two years at Midtown Community Court, Mogulescu had only 10 that did so—judges have dismissed those in which the supposed evidence amounted to the possession of condoms.

In one such case, in January 2011, the prosecutor, Assistant District Attorney Matthew McKenzie, attempted to use the possession of a single, wrapped condom as evidence for prostitution. Judge Richard Weinberg, then the presiding judge at Midtown Community Court, said, according to court transcripts, “I find nothing wrong. I find no probative value at all in finding a condom.” After the prosecutor pushed further for conviction, Weinberg pushed back. “In the age of AIDS and HIV,” he said, “if people are sexually active at a certain age and they are not walking around with condoms, they are fools.” Case closed.

The New York City Department of Health has been giving away free condoms since 1971, and has made condom distribution a centerpiece of its public-health program over the past six years. In 2007, the city created its very own condom: the NYC Condom, packaged with sleek black wrappers and a design that mimics the lettering found on subway signs. The Department of Health reports that it distributed 35.5 million condoms last year alone. In 2011, the city even launched an app that uses GPS technology to locate and give directions to the nearest venues that distribute free NYC Condoms. The Department of Health wants to make New York City the safest city in the world to have sex in—but for whom?

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